Defendant’s application for continuance, in so far as it related to the absent witnesses M. J. Pennington and John Orr, is in strict compliance with the requirements of the statute (Code Crim. Proc., art. 560), and, whilst it is not so averred as to the others, it is expressly stated that as to these witnesses 11 there is no reasonable expectation that the attendance of said witnesses can be secured during the present term of the court by a postponement of the trial to some future day of said term.” As to the witness M. J. Pennington, the application went beyond the requisites of a first application and stated that her testimony could not be procured from any other source known to affiant, and that he had reasonable expectation of procuring the same at the next term of court. (Code Crim. Proc., art. 561; Pinckord v. The State, 13 Texas *88Ct. App., 468.) Diligence to secure the attendance of these witnesses is also shown. Let us see as to the materiality of their proposed testimony, and the probabilit}7 of its truth, considered in connection with the evidence adduced on the trial, as the same should have been considered by the trial judge when passing upog appellant’s motion for a new trial in the lower court.
Two different theories are contended for by the parties. On behalf of the State the evidence showed a killing without cause or excuse,—an assassination, in fact. On the other hand, defendant claimed, and the testimony of several of his witnesses tended to show, that he took the life of the deceased in self-defense, blow, in addition to the testimony of these witnesses, he swears that he expects to prove by the absent witness John Orr “that he (the witness) was present at the killing and within a few steps of the parties at the time of the killing, and saw the deceased draw his pistol and attempt to shoot defendant before defendant drew his pistol or fired it.” This statement, if deposed to by the witness at the trial, would have coincided, in a great measure, with that of several of defendant’s witnesses, and particularly with the testimony of David Orr, who was a brother of the absent witness, and who was with him at the time the shooting took place. Whilst the testimony proposed to be adduced from the witness M. J. Pennington is not so direct and pertinent as the above, yet it cannot be said, taking all the other evidence into consideration, that it could not have had its • effect in assisting the jury in coming to their conclusion as between the two theories submitted to them. We are of opinion that the court should have granted defendant a new trial, when this testimony is considered in connection with the evidence which had been elicited at the trial.
With a view to a second trial of this case we will now notice some of the other questions raised, and which might likely be presented on such other trial. A short time after the homicide defendant was arrested and brought before a justice sitting as an examining court. At this examining court one H. M. Young appeared and testified as a witness in behalf of the State, and his testimony was reduced to writing by the justice holding the court. On the trial, from which this appeal was taken, the witness H. M. Young, not being present in person, the prosecution proposed to read in evidence his written testimony taken before the examining court, and defendant objected to the same upon the ground that a sufficient predicate was not laid by the State for the introduction of such testimony.
Our statute provides the rules which govern the introduction of *89such testimony. And two of these rules are, first, that the "witness resides out of the State, or, thirdly, that be has removed beyond the limits of the State. (Code Crim. Proc., art. 772; Evans v. The State, 12 Texas Ct. App., 370.) Where either of these grounds is relied upon, oath must be made of the fact that the witness resides out of the State, or that he has removed beyond the limits of the State. 2sTo formal independent oath is necessary, provided the fact is established, as any other fact may be, by the testimony of some witness. (Post v. The State, 10 Texas Ct. App., 579; Pinkney v. The State, 12 Texas Ct. App., 352.)
As a predicate in this case for the introduction of the absent witness Young’s testimony, the State introduced J. A. Berry, a brother-in-law of the "witness Young, who swore that H. M. Young and family left here to go to Tennessee; that this witness got a letter from II. M. Young’s wife, some time ago, postmarked Tennessee; and by Wm. Sanders, the step-father of H. M. Young, that H. M. Young left Bonham in December, 1884, and stated that he was going to Smith county, Tennessee; that he did not know whether he would stay or not; that he said he would come back if he didn’t like the country; that his, witness’s, wife received a letter from H. M. Young’s wife some time ago; that he did not know the contents of the letter; that the letter spoke of H. M. Young. It was objected that the testimony of these witnesses was hearsay; that the letters spoken of by them were not letters written by H. M, Young, and, if the letters even mentioned II. M. Young, that, being written by a third party, they were mere hearsay as to Young; and that, whilst it was competent to show the declarations of Young that he was going to Tennessee at the time he left, such declarations would not be sufficient to show that he had in fact gone to Tennessee and that he resided there.
It has been held that a witness’s statement, even in a deposition itself, that he is about to go abroad, will not render it unnecessary to prove that he has put his purpose into execution. (1 Whart. Ev., 2d ed., § 178.) Mr. Bouvier says “ that legal residence, inhabitancy and domicile are generally used as synonymous. . . . Two things must concur to establish domicile — the fact of residence, and the intention of remaining. . . . These two must exist, or must have existed in combination. . . . Nor is the intention of constituting domicile alone, unless accompanied by some acts in furtherance of" such intention, sufficient. . . . Bemoval to a place with the intention of remaining there for an indefinite period, and as a place of fixed present domicile, constitutes domicile, though *90there be a floating intention to return. . . . Both inhabitancy and intention are, to a great extent, matters of fact, and may be gathered from slight indications. . . . Declarations made at the time of a change of residence are evidence of a permanent change of domicile; but a person cannot by his own declarations make out a case for himself. . . . The domicile of the husband is that of the wife.” (1st Bouvier’s Law Dictionary, Title “ Domicile.”) Mr. Webster defines to reside to mean “to remain; to dwell permanently or for a length of time; to have a settled abode for a time.”
Mow whilst, under the above authorities, perhaps, it cannot be said that the predicate adduced was sufficient to establish the fact that the witness Young resided out of the State of Texas or in the State of Tennessee, yet we think that the evidence was sufficient as a predicate to show that he had removed beyond the limits of the State. That he has removed beyond the limits of the State is as much a ground for the introduction of the written testimony of a witness taken at an examining trial as is the fact that the witness resides out of the State. (Code Crim. Proc., art. 772, subdiv. 3.) To remove is, according to Mr. Webster, “ to change place in any manner; or to make a change in place; to move or go from one place to another.”
In the case we are considering the fact that the witness Young left the residence of his step-father to remove to Tennessee, and the fact that he had not returned, coupled with the further fact that he had stated, at the time he left, that he would return if he didn’t like it, and the fact that the witness’s wife had written to Berry from Tennessee, we think sufficiently establish the fact that the witness Young had removed beyond the limits of this State, whether he had acquired a residence or domicile in Tennessee or not. (Garcia v. The State, 12 Texas Ct. App., 335; Cowell v. The State, 16 Texas Ct. App., 57.)
The court did not err in holding that a proper predicate had been laid for the introduction of the written testimony of the absent witness H..M. Young.
Two special instructions were requested in behalf of the defendant, and were refused by the court because they were stated to be fully embraced in the general charge. We do not think the general charge embraced the second special instruction, and, under the charge as given and the peculiar facts of the case, we believe this instruction should have been given in connection with the general charge. This instruction is in these words, to wit: “That, if the *91deceased Webb, on account of threats made by the defendant against him, attacked the defendant with a pistol, or in such manner as was calculated to induce the defendant Parker to believe his life was in danger, these former threats made by the defendant, if any were made by him, would not operate to deprive the defendant of his right of self-defense; but defendant would have the right to act as though he, defendant, had made no such threats.” This special instruction is the law, and was pertinent and applicable to one phase of this case shown by defendant’s witnesses. (Smith v. The State, 15 Texas Ct. App., 338.) The refusal to give the special requested instruction might not have been such material error as would have been reversible, in view of the charge as given; still, inasmuch as it was the law and presented this phase of the case, or rather the law upon it, in a more pointed and pertinent manner than it wTas presented in the general charge, we are of opinion that defendant was entitled to it, and that it should have been given.
The other errors assigned and discussed by counsel in the brief for appellant are not noticed or commented on by us, because they are not likely to arise upon another trial.
Because the court erred in overruling defendant’s motion for a new trial, for the reasons indicated in the first portions of this opinion, the judgment is reversed and the cause is remanded for a new trial.
Reversed and rema/nded.
[Opinion delivered April 25, 1885.]